Fundamental rights most affected

• Author: European Union Agency for Fundamental Rights (EU body or agency)
• Pages: 23-32

FRA Focus

23

7. Fundamental rights most affected

This section discusses the specif‌ic fundamental rights

that are most affected when using facial recogni-

tion technologies in the context of law enforce-

ment. It focuses on live facial recognition technol-

ogies, when facial images are extracted from CCTV

cameras and compared with a database or watch-

list. This section is not an exhaustive analysis of

all fundamental rights affected by facial recogni-

tion technologies, but rather of pertinent examples.

7.1. Respect for private

life and protection of

personal data

The rights to respect for private life and data protec-

tion are central to the deployment of facial recogni-

tion technology in public places. Although the two

are closely related, they are distinct, self-standing

rights. They have also been described as the “clas-

sic” right to the protection of privacy and a more

“modern” right, the right to data protection.95 Both

strive to protect similar values, i.e. the autonomy

and human dignity of individuals, by granting them

a personal sphere in which they can freely develop

their personalities, think and shape their opinions.

They thus form an essential prerequisite for the

exercise of other fundamental rights, such as the

freedom of thought, conscience and religion (Arti-

cle10 of the Charter), freedom of expression and

information (Article11 of the Charter), and free-

dom of assembly and of association (Article12 of

the Charter).96

Using live facial recognition technologies implies

collecting, comparing and/or storing facial images

in an IT system for identif‌ication purposes. It, there-

fore, constitutes an interference with the right to

protection of personal data set out in Article 8 of the

Charter (embodying pre-existing EU data protection

law) and the right to private life under Article7 of

the Charter and Article8 of the ECHR. Facial images

constitute personal data, as also conf‌irmed by the

CJEU97 and the ECtHR.98 The ECtHR has also stated

that a person’s facial image constitutes one of the

95 CJEU, joined cases C-92/09 and C-93/09, Volker und Markus

Schecke and Eifert GbR and Hartmut Eifert, Opinion of Advocate

General Sharpston, 17 June 2010, para. 71.

96 FRA, Council of Europe and EDPS (2018), Handbook on

European data protection law. 2018 edition, Luxembourg,

Publications Oce, June 2018, p. 19.

97 CJEU, C-291/12, M. Schwarz v. Stadt Bochum, 17 October 2013,

paras. 22, 48-49.

98 ECtHR, Szabó and Vissy v. Hungary, No. 37138/14, 12 January

2016, para. 56.

key attributes of his/her personality, as it reveals

the person’s unique characteristics and distinguishes

the person from his/her peers. The right to the

protection of one’s facial image is thus one of the

essential components of personal development.99

The concept of “private life” is a broad term not

susceptible to exhaustive def‌inition. It covers the

physical and psychological integrity of a person,

and can, therefore, embrace multiple aspects of the

person’s physical and social identity.

100

There is also

a zone of interaction of a person with others, even

in a public context, which may fall within the scope

of “private life”.

101

In other contexts, the ECtHR has

used the concept of “reasonable expectation of

privacy” – referring to the extent to which people

can expect privacy in public spaces without being

subjected to surveillance – as one of the factors,

albeit not necessarily a conclusive one, to decide

on a violation of the right to respect for private life.

Its relevance and scope of application, however,

appears to be limited.102 Similarly, according to UN

experts, the mere fact that participants in assem-

blies are out in public does not mean that their pri-

vacy cannot be infringed.103 The processing of facial

images in large-scale databases may, as facial rec-

ognition technology develops, raise unchartered

issues about the rights to protection of private life

as well as of personal data. Given that these two

rights are not absolute rights, they can be subject to

limitations, but any interference needs to be ade-

quately justif‌ied104 and cannot compromise at any

event the essential, inalienable core of that right,

as explained in Section 6.2.105

Live facial recognition technology involves the bio-

metric processing of facial images taken in a pub-

lic place, for the purpose of determining a person’s

99 ECtHR, Guide on Article 8 of the European Convention on Human

Rights Right to respect for private and family life, home and

correspondence, Strasbourg, Council of Europe, 31 August

2019, para. 138.

100 ECtHR, López Ribalda and Others v. Spain, Nos. 1874/13 and

8567/13, 17 October 2019, para. 87.

101 Ibid., para. 88.

102 Vermeulen, M. (2015), SURVEILLE Deliverable D4.7 – The scope of

the right to private life in public places, July 2014, p. 2.

103 UN, Human Rights Committee, draft General Comment No. 37

[Article 21: right of peaceful assembly), draft prepared by the

Rapporteur, Christof Heyns, July 2019, para. 69.

104 See also FRA, Council of Europe and EDPS (2018), Handbook

on European data protection law. 2018 edition, Luxembourg,

Publications Oce, June 2018, pp. 35-52.

105

European Court of Human Rights (2019), Guide on Article8 of the

European Convention on Human Rights – Right to respect for private

and family life, home and correspondence, Strasbourg, Council of

Europe, updated on 31 August 2019, paras. 133 and 136.